Export Control Basics
James E. Peterson, Ph.D.
Associate Vice Chancellor for Research
Office of Sponsored Research
What are Export Controls?
A comprehensive series of regulations enforced by the Federal Government that regulate the distribution of certain exports to foreign nationals and foreign countries because of
• the nature or type of technology has potential military applications
• the nature or type of technology raises some sort of trade/economic protection issue
• concerns about the country, organization, individual or end user of the technology
What are Export Controls?
• Export control laws apply to all activities – not just sponsored research projects
• Control involves obtaining a license from the federal government prior to exporting
What is an export?
Transfer to a foreign person in the U.S. or abroad of
• Controlled technology
• Information
• Equipment
• Software
• Services
What is a transfer?
Transfer can be by:
• Actual shipment outside the U.S.
• Electronic or digital transmission
• Visual inspection in or outside the U.S.
• Written or oral disclosure
• Actual use or application on behalf or for benefit of foreign person or entity
What is a “deemed export”?
• Transmitting the technology, information, etc. to a foreign person within the United States
• Methods of disclosure include
Who is a foreign person?
• Any person who is not a lawful permanent resident of the U.S.
• Any foreign corporation or other entity or group that is not incorporated or organized to do business in the U.S.
• Any foreign government
Responsible U.S. Agencies
• STATE
International traffic in Arms Regulations (ITAR)
for inherently military technologies
• COMMERCE
Export Administration Regulations (EAR)
for “Dual Use” technologies
• TREASURY
Office of Foreign assets Control (OFAC)
prohibits transactions with countries subject to embargo, boycott or trade sanctions
ITAR
• U.S. Munitions List
http://www.pmdtc.org/reference.htm#ITAR
– Defense articles, defense services and related technical data
– Divided into 21 categories
• GPS equipment
• Toxicological agents
• Country Control Chart
http://www.pmdtc.org/country.htm
EAR
• Commodity Control List
http://www.access.gpo.gov/bis/ear/ear_data.html
• Part 738
• Primarily commercial
• 11 different categories
• Computers
• Lasers
• Microorganisms/toxins
• Country List
http://www.access.gpo.gov/bis/ear/ear_data.html
• Part 783 SPIR
• 15 pages country vs category reason for control
OFAC
• Embargoed Countries
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html
• List can change but today includes:
– Cuba, Iran, Iraq, Libya, Liberia, Sudan, North Korea, Syria
• Difficult to do anything with these countries
Penalties for ITAR
• Criminal
– Up to $ 1 million for a university or company
– Up to $1 million per violation for individuals and/or up to 10 years in prison
• Civil violations
– Up to $500,000 / violation for individuals, a university or company
– Seizure of articles
– Revocation of exporting privileges
Penalties for EAR
• Criminal
– Up to $1 million for a university or company
– Up to $250,000 / violation for individuals and/or up to 10 years in prison
• Civil
– Loss of export privileges
– Up to $12,000 / violation for individuals, a university or company
Penalties for OFAC
• Criminal
– Maximum fine of $100,000 for individuals and/or 10 years imprisonment
– Maximum fine of $1 million for a university or company
• Civil
– Maximum fine of $55,000 / violation
– Violations of specific sanctions may add additional penalties
Implications of Export Control Laws
• No effect on most university research because we qualify for one of the exclusions
• Potential impact on
– Ability of foreign students or researchers to participate in research involving a controlled technology
– Ability to provide services (including training) to foreign persons
– Ability to send controlled equipment to foreign countries
Exclusions
A license is not required to disseminate information if one of three exclusions applies:
– Fundamental Research (ITAR, EAR)
– Employment (ITAR only)
– Education (ITAR, EAR)
Fundamental Research Exclusion
No license is required to disclose to foreign persons information that is published and generally available or accessible to the public. Basic or applied research in science or engineering at universities where the resulting information is ordinarily published and shared broadly in the scientific community.
Fundamental Research Normally…
• Unless the university accepts any clause that:
– forbids the participation of foreign persons
– gives the sponsor a right to approve publications
– restricts participation in research and/or access to and disclosure of research results
• Unless there are “side deals” between PI and sponsor regarding publishing
Employment Exclusion
No license is required to share controlled technical information with a foreign person who
– is a full-time regular university employee
– has permanent address in the U.S. while employed provided that the person is
• not a national of a country to which exports are prohibited
• advised in writing not to share controlled information with other foreign persons
– does not apply to graduate students
Education Exclusion
• No license is required to share with foreign persons “information concerning general scientific, mathematical or engineering principles commonly taught in universities or information in the public domain.”
• Foreign students using controlled equipment to conduct research should be registered for a research credit class.
Questions from the UNC-CH IPF
Is it Really a Can of Worms?
• Educate PIs and staff on export control regulations
• Sreen proposals to determine if there may be a problem
• Basis for compliance if proposal is funded
Things to Watch For
• Restrictions on publications
• “Side Deals”
• Providing services or new information materials to/from a boycotted country
• Collaborating with foreign colleagues in foreign countries
• Foreign Nationals in the U.S.
• Travel outside the U.S.
• Carrying equipment/samples outside the U.S.
• Shipping equipment/samples overseas
• Payments to certain countries
• Accepting export controlled information
Resources
OSR web site on Export Control
http://research.unc.edu/osr/policies/export_control.php